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2020 DIGILAW 58 (CAL)

Jakir Hosain Mondal v. State Of West Bengal

2020-01-15

SHIVAKANT PRASAD

body2020
JUDGMENT Shivakant Prasad, J. - The judgment of conviction dated 12.01.2017 and order of sentence dated 13.01.2017 passed by the Additional District and Sessions Judge, 2nd Court, Krishnagar, Nadia in Sessions Trial No. XI(VIII) of 2016 corresponding to Sessions Case no. 18(06) of 2016 (Special) arising out of Dhantala Police Station case no. 179 of 2016 dated 25.06.2016 under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to "POCSO Act") has been challenged by the appellant who is suffering sentence for 3 years and 7 months approximately for the offence charged under Section 10 of the POCSO Act, whereunder the appellant was sentenced to undergo imprisonment for 5 years and to pay fine of Rs.10,000/-, in default to undergo rigorous imprisonment of 6 months more. 2. The appellant was placed on trial before the Trial Judge to answer the charges for the offence under Section 6 of the POCSO Act. 3. The brief facts leading to this appeal is that on 20.06.2016, the victim girl; is daughter of the complainant who told her mother that the appellant/accused had touched the private part of the victim girl. On 23.06.2016 at about 3 p.m. when the victim girl returned home, she disclosed to her mother that the appellant had once again touched her private part when she had gone to take private tuition. 4. After investigation, the Investigation Officer submitted charge-sheet under Section 6 of the POCSO Act against the appellant. After framing of the charge under Section 6 of the POCSO Act, the trial proceeded before the trial Court as the appellant abjured the guilt and claimed to be tried. 5. The prosecution examined as many as 12 witnesses in order to bring home the charge levelled against the accused/appellant and also adduced in evidence the statement of the victim under Section 164 of the Cr.P.C. marked as Ext.1, statement of the victim girl and that of her mother Rima Sarkar under Section 164 of the Cr.P.C. proved as Ext. 1 and 2, the written complaint Ext. 3 together with endorsement of complaint Ext. 3/1 and the medical examination report in respect of the appellant Ext. 4, medical examination report in respect of the victim girl Ext. 5, FIR Ext. 6 and sketch map of place of occurrence Ext. 7 and seizure list Ext. 8 to show manner of investigation undertaken by the Investigating Officer. 3 together with endorsement of complaint Ext. 3/1 and the medical examination report in respect of the appellant Ext. 4, medical examination report in respect of the victim girl Ext. 5, FIR Ext. 6 and sketch map of place of occurrence Ext. 7 and seizure list Ext. 8 to show manner of investigation undertaken by the Investigating Officer. After the trial was concluded on evidence, the appellant was examined under Section 313 of the Cr.P.C. who declined to adduce defence witness. After hearing both the parties, learned Judge by the impugned judgment convicted the appellant guilty of the offence under Section 10 of the POCSO Act and sentenced him to suffer imprisonment for 5 years and to pay fine of Rs.10,000/- 6. Being aggrieved by the judgment impugned, the appellant has preferred this appeal, inter alia, on the grounds that the evidence on record does not justify conviction of the appellant under Section 10 of the POCSO Act and the order and sentence is liable to be set aside. 7. Mr. Atis Kumar Biswas, learned advocate for the appellant invites my attention to the evidence of the victim, her parents, the neighbours, police witnesses on record to show that the learned Trial Judge has failed to appraise the evidence in right perspective and was bent upon to record a judgment of conviction and sentence with overzealous mind. 8. It is further pointed out that learned Judge has also failed to appreciate the provision of POCSO Act while convicting and sentencing the appellant. It is submitted that the recording of statement of the victim was tutored as would be evident from the evidence of the victim girl herself who stated on oath that as tutored by her mother she made her statement before the learned Judicial Magistrate. Secondly, it is submitted that false case has been foisted against the appellant due to political rivalry which would be apparent from the evidence of PW 4 and PW 10 who are the political members of the locality, and the family members of the victim were examined who are highly interested witnesses in the proceeding to see that the appellant was convicted and sentenced. 9. Admittedly, the appellant was a teacher of a school and the school attained its fame because of the contribution of the appellant who was a devoted teacher as per the statement of the Mr. 9. Admittedly, the appellant was a teacher of a school and the school attained its fame because of the contribution of the appellant who was a devoted teacher as per the statement of the Mr. Biswas, learned advocate for the appellant. 10. It is further pointed out that none of the school teachers or staff members or any of the students of the school has been examined in support of the prosecution case inasmuch as it is admitted by the mother of the victim girl and herself that she used to take private tuition from the appellant and she used to go to school to take private tuition along with her friends and also return with her friends but none has been examined in support of the prosecution case. 11. The evidence of the victim girl PW1 is worth reading. According to her in examination-in-chief, the appellant took her on his lap and started ejaculation in her vagina forcibly and for that she suffered pain and was crying. Then she told the fact to her mother. The case was filed by her father. She was taken to hospital and doctor attached to the hospital examined her medically and made history of the injury. She was also produced before the Magistrate and the statement was recorded under Section 164 of the Cr.P.C. which has been proved as Ext.1. 12. The identity of the accused/appellant is beyond the doubt but the fact remains that victim girl has clearly stated on oath during her cross-examination that when she was accompanied by her father to the police station, she had seen the appellant Jakir master, the appellant herein, already under arrest. It shows that before the case was started, the appellant was arrested and was detained in the police lock up. It is not understood under what situation, he was taken into custody and put behind the bar. PW1 has admitted that as per dictation of police, her father prepared the written complaint and lodged the same in the police station. So obviously the content of the written complaint does not find corroboration by its maker. 13. It is not understood under what situation, he was taken into custody and put behind the bar. PW1 has admitted that as per dictation of police, her father prepared the written complaint and lodged the same in the police station. So obviously the content of the written complaint does not find corroboration by its maker. 13. Admittedly, PW1 had not revealed the fact to any school teacher or to the wife of the accused/appellant or to her school-mate and after 10 days from the date of the incident, she told the fact to her mother and never informed about any pain or suffering as deposed in her examination-in-chief. There was no cut injury in her private part. Her testimony in unequivocal term reveals that it was her mother who tutored her to make such statement before the Judicial Magistrate. Accordingly, being tutored she has stated to the Magistrate that Jakir master, the appellant herein, had ejaculated in her vagina. But such is not the real fact as there is no corroboration by medical report. Rima Sarkar, PW2, mother of the victim girl has deposed, on the contrary, after getting tuition on the alleged date of incident, her daughter returned home and she was crying and subsequently stated to her that Jakir master, the appellant herein, had ejaculated in her vagina. So, according to PW2, on the next date, she sent her daughter for getting private tuition and the same incident occurred, then she saw vagina of her daughter and found redness and nail abrasion in and around. But such facts as deposed by PW2 does not find corroboration by the medical evidence too. 14. Dr. Apurba Kundu, PW8, who examined the victim girl but found no mark of injury on her private part or any part of her body. PW8 found no rupture of hymen or presence of any foreign body in her private part. 15. But such facts as deposed by PW2 does not find corroboration by the medical evidence too. 14. Dr. Apurba Kundu, PW8, who examined the victim girl but found no mark of injury on her private part or any part of her body. PW8 found no rupture of hymen or presence of any foreign body in her private part. 15. Therefore, the prosecution case appears to be a concocted and false case being foisted against the accused/appellant as I find no justification for PW2 to have sent her daughter on the next day to Jakir master to take tuition instead of reporting the matter instantly to police station and visiting to a doctor for medical examination to ascertain redness and cut mark on her daughter's vagina when PW2 found her daughter crying and complained of pain in her private part due to ejaculation by Jakir Master. 16. It is understood from the evidence of PW2 that prior to lodging of the written complaint, the appellant was under arrest on 24.06.2016 at night and on the next day, the written complaint was lodged and on 24.06.2016 the appellant was detained in T.M.C. party office and from where he was handed over to police and the police had kept him detained in the police lock up and on that night the written complaint was submitted but the contents of the FIR does not find corroboration by its maker. 17. Nayan Sarkar, PW3, the father of the victim girl, has stated on oath that he did not see to ascertain whether there was any injury or any abrasion in the private part of his daughter. But he simply heard from his wife that may be quite natural. But according to him, probably he knew the fact of incident on 18.06.2016/19.06.2016 from his wife whereas the incident alleged is on 20.06.2016. 18. Pw3 though proved the written complaint as Ext. But he simply heard from his wife that may be quite natural. But according to him, probably he knew the fact of incident on 18.06.2016/19.06.2016 from his wife whereas the incident alleged is on 20.06.2016. 18. Pw3 though proved the written complaint as Ext. 3 but he has specifically stated on oath that police wrote down the complaint as per his dictation prior to filing of the case and scribe of the written complaint Bhagbat Saha, PW7 stated that he had drafted the written complaint in his house and it was written in the FIR that contents of the written complaint was read over and explained to Nayan Sarkar and after arrest of the accused, the school was shifted from that place to another place at the instance of the guardians. He heard about the incident on 23.06.2016 and on 24.06.2016 from the mother of the victim girl whereas FIR was lodged on 25.06.2016. 19. With regard to incident, the evidence of PW 4 is that of hearsay evidence who was a former Panchayat member elected from T.M.C. and PW 3, father of the victim girl, has a jewellery shop in his house on rental basis. 20. In the given facts of the case, the evidence of Pampa Saha, PW6, cannot be relied as that of the hearsay about the incident from one Rima Sarkar, mother of the victim girl, that Jakir Hosain had taken her daughter on his lap and touched the private part of her daughter. According to PW6 Pampa immediately after receiving the information, saw injury mark in her vagina but had not visited the doctor for examination. 21. Sudip Saha, PW4, heard the fact from the villagers about said incident and about the villagers having attacked Jakir master and that he had saved him and handed over to the police. This person is a Panchayat member elected from T.M.C., but he has stated nothing to the police about what he had heard about the incident from the villagers and he was instrumental in shifting the place of the school after the arrest of the accused/appellant. 22. Pw12, the Investigating Officer, having undertaken the investigation, visited the place of occurrence, prepared sketch map Ext. 22. Pw12, the Investigating Officer, having undertaken the investigation, visited the place of occurrence, prepared sketch map Ext. 7, recorded statement of the witnesses under Section 161 of the Cr.P.C. and produced the victim girl for her statement under Section 164 of the Cr.P.C. before the Magistrate and collected medical report and also seized birth certificate of the victim Ext.8 but the birth certificate has not been produced before the Court for proving the exact age of the victim girl. 23. Now, turning to the observation and finding of the trial Judge in the impugned judgment convicting the appellant under Section 10 of the POCSO Act, this Court finds that the appellant faced trial for charge under Section 6 of the said Act. The Court held the appellant guilty of the offence under Section 10 of the POCSO Act. No doubt the POCSO Act was enacted to effectively address the sexual abuse and sexual exploitation of children below 18 years of age which provides different forms of sexual abuse including the penetrative and nonpenetrative assault as well as sexual harassment and show of pornography and defines aggravated penetrative sexual assault and also provides for mandatory reporting of sexual offences which cast a legal duty of every person having knowledge that a child has been sexually abused to report the offence, but that does not mean that the provision of the Act has to be attracted to falsely implicate any innocent person out of personal dispute or political rivalry. 24. The provision of Section 10 provides for punishment for aggravated sexual assault that whoever commits aggravated sexual assault shall be punished with imprisonment shall not be lest than 5 years, extendable up to 10 years and shall also be liable to fine. The aggravated sexual assault as defined under Section 9 of the POCSO Act has inclusive definition under POCSO Act, which does not appear to have been substantiated in the given facts of the case based on the evidence on record. The aggravated sexual assault as defined under Section 9 of the POCSO Act has inclusive definition under POCSO Act, which does not appear to have been substantiated in the given facts of the case based on the evidence on record. As regards the conviction of the appellant under Section 10 of the Act, the learned Judge has observed that charge under Section 10 of the POCSO Act for aggravated sexual assault on the victim has been well established and as per provision of Section 222(2) of the Cr.P.C. convicted the appellant for the said charge with the observation that when a person is charged with an offence and the fact is proved which reduced it to a minor offences, he may be convicted of minor offence although he was not charged with it. 25. It is true that victim's statement does not require corroboration but testimony of victim is true account of the incident is also required to be considered. There is no dispute as to application of the said provision. There is no dispute that the victim girl was not aged 7 years and a minor but the victim girl deposed on oath in clear crystal term that she made statement before the Magistrate and deposed on being tutored by her mother. 26. Therefore, the judgment holding the appellant guilty of the offence punishable under Section 10 of the POCSO Act for aggravated sexual assault is not tenable in law and in fact consequently the judgment impugned is liable to be set aside and I set aside the judgment impugned holding the appellant not guilty of the offence punishable under Section 10 of the Act and be set at liberty. 27. Accordingly, the appeal is allowed. 28. A copy of this judgment together with LCR be sent down to the learned Trial court forthwith for necessary note in the Sessions Trial Register and for doing the needful. An extract of this judgment be also sent to the Superintendent, concerned Correctional Home for his information and for needful action. 29. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon completion of all necessary formalities.